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Filed 12/15/21 P. v. Clark CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Tehama)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

CHRISTOPHER WILLIAM CLARK,

Defendant and Appellant.

C091846

(Super. Ct. No. NCR96565)

Defendant Christopher William Clark pleaded guilty to one count of robbery and

admitted several enhancement allegations. The trial court sentenced defendant to an 

aggregate term of 20 years in state prison. On appeal, defendant argues this case must be 

conditionally reversed and remanded for the trial court to conduct a mental health 

diversion eligibility hearing under Penal Code section 1001.36 (statutory section citations 

that follow are to the Penal Code unless otherwise stated), which he contends applies 

retroactively. We will conditionally reverse defendant’s judgment and remand to the trial 

court for an eligibility determination under section 1001.36.
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FACTS AND HISTORY OF THE PROCEEDINGS

Following a release from a mental health facility from a psychological hold, 

defendant shoplifted at a store and punched a store employee during a confrontation over 

the stolen goods. Defendant was charged with one count of robbery (§ 211) and alleging 

three prior serious or violent felony convictions within the meaning of the “Three 

Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), three prior serious felonies 

convictions (§ 667, subd. (a)(1)), and one prior prison term (§ 667.5, subd. (b)). 

The court ordered the appointment of two psychiatrists under section 1368 to 

determine defendant’s competency to stand trial. Doctors Kent Caruso and Ray Carlson 

both noted in their reports that defendant reported being diagnosed with bipolar disorder 

while in prison and that he had been prescribed Risperdal, Seroquel, and Trazodone. 

Dr. Carlson concluded that defendant had a history strongly suggestive of antisocial 

personality disorder but that he showed no severe mental illness. Dr. Caruso reported 

that he did not find any evidence to support a judgement or jury finding of not guilty by 

reason of insanity. Dr. Caruso did review defendant’s records in which he found 

concerns over or diagnoses such as mood disorder “NOS,” anxiety disorder “NOS,” and a 

need to rule out bipolar disorder, depression and substance induced mood disorder. 

While in prison, defendant was diagnosed with bipolar disorder with depression. In a 

report dated December 7, 2016, Dr. Carlson noted that, while there was no evidence that 

defendant suffered from psychosis, he was diagnosed with dysthymic disorder in 2011. 

Defendant informed Dr. Carlson that he was previously diagnosed with bipolar disorder. 

Further, according to the report of the probation officer, hours before the crimes at issue,

appellant was released from a Welfare and Institutions Code section 5150 hold from the 

Tehama County Mental Health Crisis Unit. 

Defendant subsequently pleaded guilty to the robbery count and admitted one 

prior strike (§ 1170.12, subds. (a)-(d)) and two prior serious felonies (§ 667, subd. (a)(1)); 
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the remaining allegations were dismissed. The trial court sentenced defendant to the 

upper term of five years on count one, doubled pursuant to the Three Strikes law, plus 

five years for each of the prior serious felony convictions, for a total of 20 years in state 

prison. 

In conjunction with a motion to withdraw his plea, the defense submitted 

numerous mental health records relating to defendant, including records from the

Riverside County Department of Mental Health, Tehama County Health Services Agency 

Mental Health Division, and the Department of Corrections. These records revealed that 

defendant had been diagnosed with mood disorder and anxiety disorder and that 

defendant reported a prior diagnosis of bipolar disorder. 

Defendant appealed, and while his appeal was pending, on June 27, 2018, the 

Legislature enacted section 1001.36, which created a pretrial diversion program for 

certain defendants with qualifying mental disorders. (§ 1001.36, subd. (a); Stats. 2018, 

ch. 34, § 24.) The following year, this court filed a decision affirming defendant’s

conviction but remanding the matter to the trial court to permit the court to decide 

whether to exercise its discretion under Senate Bill No. 1393 to strike one or both of 

defendant’s prior serious felony enhancements imposed under section 667, subdivision 

(a). (People v. Clark (Nov. 8, 2019, C085301) [nonpub. opn.].) On remand, the trial 

court declined to exercise its discretion to strike one or both of defendant’s prior serious 

felony sentence enhancements. 

Defendant filed a notice of appeal. 

DISCUSSION

Defendant argues, and respondent agrees, that he is entitled to remand so the trial 

court can determine whether he is eligible for pretrial diversion, due to a specified mental 

disorder under the recently enacted section 1001.36. Citing our Supreme Court’s 

decision in People v. Frahs (2020) 9 Cal.5th 618 (Frahs), he contends that section 
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1001.36 is retroactive to all cases not yet final. We conclude that under Frahs,

conditional remand is required. 

Section 1001.36, which went into effect before defendant’s judgment became final 

(Stats. 2018, ch. 34, § 24, eff. June 27, 2018), provides pretrial diversion may be granted 

if the trial court finds all of the following criteria are met: (1) the defendant suffers from 

a recently diagnosed mental disorder enumerated in the statute; (2) the disorder was a 

significant factor in the commission of the charged offense, and that offense is not one of 

the offenses enumerated in subdivision (b); (3) “[i]n the opinion of a qualified mental 

health expert, the defendant’s symptoms of the mental disorder motivating the criminal 

behavior would respond to mental health treatment”; (4) the defendant consents to 

diversion and waives his right to a speedy trial; (5) the defendant agrees to comply with 

treatment as a condition of diversion; and (6) the defendant will not pose an unreasonable 

risk of danger to public safety, as defined in section 1170.18, if treated in the community. 

(§ 1001.36, subd. (b)(1)-(2).) If the treatment under pretrial diversion is deemed 

successful, the charges shall be dismissed, and the defendant’s criminal record expunged. 

(§ 1001.36, subds. (b)(1)(A)-(C), (c)(3), (e).)

The statute further provides: “At any stage of the proceedings, the court may 

require the defendant to make a prima facie showing that the defendant will meet the 

minimum requirements of eligibility for diversion and that the defendant and the offense 

are suitable for diversion. The hearing on the prima facie showing shall be informal and 

may proceed on offers of proof, reliable hearsay, and argument of counsel. If a prima 

facie showing is not made, the court may summarily deny the request for diversion or 

grant any other relief as may be deemed appropriate.” (§ 1001.36, subd. (b)(3).)

In Frahs, our Supreme Court concluded Estrada’s inference of retroactivity 

applies to section 1001.36 such that defendants with qualifying mental disorders whose 

cases are not yet final are entitled to limited remand for the trial court to determine 
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whether they are eligible for mental health diversion. (Frahs, supra, 9 Cal.5th at pp. 624-

625; see In re Estrada (1965) 63 Cal.2d 740.) The “possibility of being granted mental 

health diversion rather than being tried and sentenced ‘can result in dramatically different 

and more lenient treatment.’ ” (Frahs, at p. 629, quoting People v. Superior Court (Lara) 

(2018) 4 Cal.5th 299, 303.) As the court explained, “the impact of a trial court’s decision 

to grant diversion can spell the difference between, on the one hand, a defendant 

receiving specialized mental health treatment, possibly avoiding criminal prosecution 

altogether, and even maintaining a clean record, and on the other, a defendant serving a 

lengthy prison sentence.” (Frahs, at p. 631.) Thus, “the ameliorative nature of the 

diversion program places it squarely within the spirit of the Estrada rule,” and the 

program retroactively applies to defendants whose cases are not yet final. (Ibid.) 

Frahs further held that a defendant is entitled to a conditional limited remand for 

the trial court to conduct a mental health diversion eligibility hearing when “the record 

affirmatively discloses that the defendant appears to meet at least the first threshold 

eligibility requirement for mental health diversion - the defendant suffers from a 

qualifying mental disorder (§ 1001.36, subd. (b)(1)(A)).” (Frahs, supra, 9 Cal.5th at 

p. 640.) In Frahs, the court found a clinical and forensic psychologist’s testimony that 

the defendant suffered from a qualifying mental disorder sufficient to meet the first 

eligibility requirement. (Ibid.) 

Defendant has introduced sufficient evidence demonstrating at least one qualifying 

mental disorder. Section 1001.36 defines a qualifying mental disorder as one “identified 

in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders, 

including, but not limited to, bipolar disorder, schizophrenia, schizoaffective disorder, or 

post-traumatic stress disorder, but excluding antisocial personality disorder, borderline 

personality disorder, and pedophilia.” (§ 1001.36, subd. (b)(1)(A).) As evidence of a 

qualifying mental disorder, a defendant must provide a recent diagnosis by a qualified 

mental health expert. (Ibid.) Here, at a minimum, defendant provided evidence of a 
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recent diagnosis of Anxiety Disorder and Dysthymia, which are mental disorders 

“identified in the most recent edition of the Diagnostic and Statistical Manual of Mental 

Disorders.” (§ 1001.36, subd. (b)(1)(A).) 

Given the above evidence, defendant meets at least the first threshold requirement 

for eligibility for mental health diversion. (§ 1001.36, subd. (b)(1)(A); Frahs, supra, 

9 Cal.5th at p. 640.) A conditional remand for the trial court to conduct a mental health 

diversion eligibility hearing is appropriate under the circumstances.

DISPOSITION

We conditionally reverse defendant’s judgment and remand to the trial court for an 

eligibility determination under section 1001.36. If the trial court finds that defendant 

suffers from a mental disorder, does not pose an unreasonable risk of danger to public 

safety, and otherwise meets the six statutory criteria, then the court may grant diversion. 

If defendant successfully completes diversion, then the trial court shall dismiss the 

charges. However, if the trial court determines that defendant does not meet the criteria 

under section 1001.36, or if defendant does not successfully complete diversion, then his 

convictions and sentence shall be reinstated. 

 

HULL, J.

We concur:

 

BLEASE, Acting P. J.

 

RENNER, J.